Dwight v. Gibb

• Decision Date: 15 April 1913
• Parties: DWIGHT v. GIBB et al.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 153

101 N.E. 851

DWIGHT

v.GIBB et al.

Court of Appeals of New York.

April 15, 1913.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Stanley Dwight, as substituted trustee, against Harrison Jeffray Gibb and others. From a part of a judgment of the Appellate Term (150 App. Div. 573,135 N. Y. Supp. 401) modifying a judgment of the Special Term, Lillian Constance Jeffray and others appeal. Affirmed.

Joseph Fischer, of New York City, for appellants.

John A. Garver, of New York City, for respondents.

CHASE, J.

Timothy Dwight died in 1857 leaving a will, which was duly probated in 1858. He directed that his residuary estate be divided into six parts, and that three of such parts be held in trust for three daughters. By his will he provided that said three parts should be held severally during the natural life of said daughters severally and upon the further trust as follows: ‘Upon the decease of my said daughters respectively, to pay over, transfer and deliver the principal of the part aforesaid, so holden in trust for the use of the daughter so respectively deceased, to the child or children of such deceased daughter respectively; and in default of such child, or children, then to my other children named in this will, and to their legal representatives in equal proportions.’

On a former appeal in this case it was held (Dwight v. Gibb, 145 App. Div. 223, 227,129 N. Y. Supp. 961, 964, 965) that the testator used the words ‘and to their legal representatives' in the will as above quoted ‘in the same sense they are used in the statute of distributions (Decedent Estate Law [Consol. Laws, c. 13; Laws of 1909, c. 18] § 98, as amended by Laws of 1909, c. 240)-lineal descendants.’ It is assumed on this appeal that such is the true meaning of such words.

The three daughters named in said will were Caroline Eleanor, Joanna, and Grace E. The testator left two sons, Timothy Trowbridge Dwight, who died in 1889 unmarried, and Stanley Dwight, who is living, and, as substituted trustee, is the plaintiff in this action.

Caroline Eleanor married a person by the name of Jeffray and died in 1873 leaving three children, all of whom died prior to 1909; one died unmarried; another died leaving two children, the defendants Harrison JeffrayGibb and Charles Alexander Gibb; and the third died leaving five children, the appellants herein. The daughter Joanna married a person by the name of Berry and died in 1880 leaving four children who are defendants herein. The daughter Grace E. married a person by the name of Schoett, and died September 25, 1909, without descendants.

This action is brought by the substituted trustee for an accounting and for a distribution of the trust fund which was held for the benefit of Grace E. The Special Term held that such trust fund should be divided into three parts, one of which should be paid to said Stanley Dwight, one of which should be divided in equal parts among the children of Joanna Berry, and the third of which should be divided in equal shares among the grandchildren of Caroline Eleanor Jeffray. The grandchildren Gibb appealed from such judgment to the Appellate Division of the Supreme Court, and the judgment of the Special Term was modified by directing that the one-third of such trust fund divided among the grandchildren of Caroline Eleanor Jeffray should be divided per stirpes and not per capita. This appeal is brought from so much of the judgment of the Appellate Division as modified the judgment at Special Term. The only question involved on this appeal is whether the one-third of the trust fund to be divided among the grandchildren of Caroline Eleanor Jeffray shall be divided between them per stirpes or per capita.

It is provided by subdivisions 10 and 11 of section 98 of the Decedent Estate Law (Consol. Laws, c. 13) as follows:

‘10. Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal.

‘11. When such descendants or next of kin are of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent whom they represent, if living, would have been entitled.’

[1] The testator intended by the use of the words ‘legal representatives,’ in that clause of the will from which we have quoted, his legal representatives. We agree with the Appellate Division in holding that ‘what is involved is the gift over of the whole share which was put in trust for Grace's benefit,’ and the clause quoted from the will relates to the disposition of such share as a whole. The descendants or next of kin of the testator are of unequal degrees of kindred, and the trust fund must be apportioned among those entitled...